VAWA Reminder: Modify HUD's Model Emergency Transfer Plan

Regulation | October 10, 2017 | by Colleen Bloom

VAWA final rules to protect the housing rights of survivors of domestic and dating violence, sexual assault, and stalking require owners to develop emergency transfer plans. Model VAWA forms and transfer policies were issued, and are currently being revised. But recent policy directives and clarifications emphasize the imperative that owners modify and adapt the model emergency transfer plan. Initial reviews of emergency transfer plans will provide only observations of need for improvement. After Dec 14, findings will be issued.

On November 16, 2016, the U.S. Department of Housing and Urban Development published a new rule to protect the housing of survivors* of domestic and dating violence, sexual assault, and stalking. Read HUD’s final rule.

Proposed Changes to Forms; Updates on Enforcement

Under the final rule, owners were required to develop emergency transfer plans for effect by June 14, 2017. While the final rule provided model forms and policies which could be modified and adapted, in August 2017, HUD posted revised VAWA related forms for comment. Although each of the four forms is being revised, of particular importance is a note that has been added to the top of form HUD-5381, Model Emergency Transfer Plan which reads:

Note to Covered Housing Providers: This model contains only general provisions of an emergency transfer plan that apply across the covered HUD programs. Adoption of this model plan without further information will not be sufficient to meet a covered housing provider's responsibility to adopt an emergency transfer plan. Covered housing providers must consult applicable regulations and program-specific HUD guidance when developing their own emergency transfer plans to ensure their plans contain all required elements.

During a July 2017 meeting of HUD officials and LeadingAge staff, implementation deadlines and enforcement policy on transfer plans were discussed. Specifically, Bob Iber, acting deputy assistant secretary for HUD multifamily programs stated that "an MOR reviewer should provide an observation between now and December 14, 2017 if a project does not have (or has an inadequate) VAWA Emergency Transfer Plan. After that date, an MOR review should issue a finding for a lack of or an inadequate Emergency transfer Plan."

Further, on June 30, HUD posted Notice H 2017-05 Violence Against Women Act (VAWA) Reauthorization Act of 2013 – Additional Guidance for Multifamily Owners and Management Agents. This 44-page notice provides guidance to owners and management agents (O/As) of HUD multifamily assisted housing on the requirements of the Violence Against Women Reauthorization Act of 2013: Implementation in HUD Housing Programs, Final Rule. Read more about this in a separate article here.

Additionally, HUD cautioned during it's VAWA implementation webinars that PRACs should wait for the revised lease addendum before trying to implement that part of the notice.

Intent of the Rule

As HUD Secretary Julián Castro stated, “Nobody should have to choose between an unsafe home and no home at all. Today we take a necessary step toward ensuring domestic violence survivors are protected from being twice victimized when it comes to finding and keeping a home they can feel safe in.”

The VAWA final rule includes:

• Continuation of the core protections – The rule codifies the core protection across HUD’s covered programs ensuring survivors are not denied assistance as an applicant, or evicted or have assistance terminated due to having been a victim of domestic violence, dating violence, sexual assault, and stalking, or for being affiliated with a victim.

• Emergency transfers – One of the key elements of VAWA’s housing protections are emergency transfers which allows for survivors to move to another safe and available unit if they fear for their life and safety. VAWA required HUD to adopt a model emergency transfer plan for housing providers and to explain how housing providers must address their tenants’ requests for emergency transfers.

HUD’s model emergency transfer plan:

» allows a survivor to self-certify their need for an emergency transfer, ensuring documentation is not a barrier to protecting their immediate safety;

» allows the survivor to determine what is a safe unit for purposes of the transfer, ensuring that the survivor has control over their own safety planning;

» requires housing providers to allow for a resident to move immediately if there is another safe and available unit that does not require the survivor to undergo an application process as a new tenant, ensuring quicker access to safe housing;

» requires housing providers to explain the efforts they will take when there is not a safe and available unit available for an emergency transfer and encourages housing providers to partner with victim services and advocates and other housing providers to assist a survivor; and,

» requires housing providers to document requests for emergency transfers, including the outcome of the request, and to report annually to HUD.

• Protections against the adverse effects of abuse – Domestic violence can often have negative economic and criminal consequences on a survivor. The perpetrator may take out credit cards in a survivor’s name, ruining their credit history, or causing damage to survivor’s property causing eviction and poor rental history. The perpetrator may force a survivor to participate in criminal activity or a survivor may be arrested as part of policies that require arresting of both parties in a domestic disturbance. The final rule ensures that covered housing providers do not deny tenancy or occupancy rights based solely on these adverse factors that are a direct result of being a survivor.

• Low-barrier certification process – The final rule makes it clear that under most circumstances, a survivor need only to self-certify in order to exercise their rights under VAWA, ensuring third party documentation does not cause a barrier for or to a survivor expressing their rights and in receiving the protections needed to keep themselves safe.

The rule includes model Self-Certification and a model Emergency Transfer Request forms (Appendix C and D respectively, in the final rule) which owners may provide to or complete on behalf of victims.

Model Forms Posted on HUD.gov

HUD has separately posted a Self-Certification and a model Emergency Transfer Request, as well as model notifications and emergency transfer policy templates, on the HUD Multifamily webpage under “Asset Management.”

These Departmental forms are model forms and owners/agents can customize them for their company and properties, as long as they contain the same information and language.

During the 12-month period following the effective date of the VAWA regulation, owners/agents must give each household the notice of occupancy rights and the certification form either during the annual recertification or lease renewal process, or, if there will be no recertification or lease renewal for a household during the first year after the rule takes effect, through other means. The 12-month period is December 16, 2016 through December 15, 2017.

Beginning on December 16, 2017, owners/agents must provide the Notification of Occupancy Rights and Certification forms to applicants when assistance is being denied or at the time the new household moves into the property. The forms do not have to be provided to every applicant on a property’s waiting list.

The Office of Multifamily Housing will be updating our current VAWA certification form, HUD-91066. In the meantime, owners/agents should use the Departmental form. (However, this form still states Section 8 - so is not appropriate for non-Section 8 programs).

Owners/agents should use the Departmental Emergency Transfer Plan form as a guide only. (NOTE: These plans MUST be modified or will not be deemed appropriate for the site, and will be noted during a Management review as a deficiency).

Owners/agents may require tenants seeking an emergency transfer to provide a written Emergency transfer request. To facilitate this, owners/agents can provide the model Departmental Request form to their tenants.

At this time the Office of Multifamily Housing does not plan to create our own Emergency Transfer Plan and Emergency Transfer Request forms, so owners/agents should use the model Departmental forms.

Multifamily Housing will be updating our Lease Addendum form, HUD-91067 in the coming months. In the meantime, owners/agents may continue to use this form. (However, this too is expressly Section 8, other programs should ask HUD before using in non-Section 8 programs).

HUD plans to have further written guidance available early next year and will plan to include a sample lease addendum that can be used prior to the update of form 91067.

*NOTE: Male as well as female victims are protected by this law and regulation.

NOTE: Additionally, HUD Form 91066 (VAWA Certification) is now obsolete and should no longer be used.